If the Police Solely Observe a Knife Clip is it a Sufficient Basis for them to Arrest You for NY PL 265.01 in New York?

If you could not merely search the NewYorkCriminalLawyerBlog.Com, but review transcripts from suppression hearings and examine New York criminal court complaints, it is likely that you would find a very common theme amongst individuals arrested for possessing illegal knives in New York pursuant to New York Penal Law 265.01(1) (often drafted as PL 265.01 on a New York City Desk Appearance Ticket). Whether the knife in question is a gravity knife opening with the force of gravity or a switchblade knife, it is “comically” common how often the police assert they observed a knife clip on the outside of a pocket, stopped that person and then removed the knife in question. While the stop and search may be legal, and therefore an arrestee’s basis for challenging his or her stop and search may fail, a recent decision may be very helpful in combating what some may argue is the over policing, and the ultimate over prosecution, of individuals who unknowingly possess certain illegal knives. Although technically illegal, many of the people arrested and given a DAT for PL 265.01 are accused of this crime after they legal purchased the blade from a reputable and established company without any belief that they could ultimately be committing a crime in New York.

In an appeal from Queens County Criminal Court, People v. Victor M. Cruz, 2011-990 Q CR, NYLJ 1202597502421, at *1 (App. Tm., 2nd, 11th, 13th, Decided April 8, 2013) directly addressed whether the clip of a knife, without any other indicia the potential contraband is a gravity knife, is sufficient to give the police the authority to stop and search a person for violating the class A misdemeanor Criminal Possession of a Weapon in the Fourth Degree pursuant to NY PL 265.01. In Cruz, the defendant was charged with with two counts of Fourth Degree Criminal Possession of a Weapon among other violations of the law. According to the record, the police pulled the defendant over for a traffic infraction and asked for the standard license and registration. The police further asked if the defendant had any weapons which he responded to in the negative. Looking into the vehicle, the arresting officer observed a clip of a knife attached to the defendant’s pant pocket.

The interaction (direct examination) from the prosecution of the officer went as follows:

Q. What did you do after seeing this clip?

A. I asked the defendant to step out of the vehicle. I asked him to put his hands on the vehicle. I did a search, went for that pocket, pulled out a gravity knife. Then I did another search on his body, found another gravity knife on his right side.

Q. Just to take a step back, what did you believe that clip was on the Defendant’s left pants pocket?

A. Gravity knife.

Q. What made you believe that was a gravity knife?

A. I believe it definitely was a knife, wasn’t sure if it was a gravity knife or not. I recognized that knife on previous arrests. I arrested people with the same clip known to be a gravity knife or any other kind of knife.

In rendering its decision, the court held that the police officer’s mere observation of the clip on Cruz’s pocket di not give that officer reasonable suspicion to ultimately search and seize the defendant and the knife. More than this observation was needed. Unhappy with the court’s decision, the prosecution sought leave to reargue the suppression only to lose again. Finally, the People appealed and the appellate court affirmed the criminal court’s decision.

Specifically, the appellate court stated as follows:

“[B]efore a police officer may conduct a limited search of a detainee in a public place, he or she must have a ‘reasonable suspicion’ that such person is committing, has committed or is about to commit a crime (see CPL 140.50 [3]; People v. De Bour, 40 NY2d 210, 223 [1976]), regardless of whether the detainee is a pedestrian or an occupant of a vehicle (see People v. Garcia, 20 NY3d 317 [2012]). Reasonable suspicion is defined as ‘the quantum of knowledge sufficient to induce an ordinarily prudent and cautious man under the circumstances to believe criminal activity is at hand’ (People v. Cantor, 36 NY2d 106, 112-113 [1975]). It may not rest on equivocal or ‘innocuous behavior’ that is susceptible of an innocent as well as a culpable interpretation (People v. Carrasquillo, 54 NY2d 248, 252 [1981]). ‘To justify such an intrusion, the police officer must indicate specific and articulable facts which, along with any logical deductions, reasonably prompted that intrusion’ (Cantor, 36 NY2d at 113; see also People v. Brannon, 16 NY3d 596, 602 [2011]). ‘Vague or unparticularized hunches will not suffice’ (Cantor, 36 NY2d at 113). Moreover, in the case of a gravity knife, the mere possession of which is a crime (see Penal Law §265.01 [1]), ‘the detaining officer must have reason to believe that the object observed is indeed a gravity knife, based on his or her experience and training and/or observable, identifiable characteristics of the knife’ (Brannon, 16 NY3d at 599). ‘An individual may not be detained merely because he or she is seen in possession of an object that appears to be a similar, but legal object,’ such as another type of knife (Brannon, 16 NY3d at 599). (emphasis added)

Even more critically, the appellate court stated that:

[A]fter defendant was ordered out of his vehicle, it was impermissible for [the officer] to pull the gravity knife out from defendant’s left side pants pocket, solely based on the officer’s observation of a clip attached to that pocket, since he was unable to assert specific and articulable facts leading to his belief that defendant possessed a gravity knife. This is not a case where the officer also observed, in addition to a clip, the top of the knife protruding from defendant’s pocket in plain view, or a portion of the knife handle (compare Brannon, 16 NY3d at 600; People v. Fernandez, decided with Brannon, id. at 600-601; People v. Neal, 79 AD3d 523 [2010]; People v. Herrera, 76 AD3d 891 [2010], affd 16 NY3d 881 [2011]; People v. Mendez, 68 AD3d 662 [2009]; People v. Best, 57 AD3d 279 [2008]). Rather, here, [the officer] saw only a clip, and nothing more, which he could not describe in detail. Thus, [the officer] was unable to describe any observable characteristics of the gravity knife, as opposed to a similar but legal knife, leading him to form a reasonable suspicion that defendant possessed a gravity knife, and thereby justifying an invasive intrusion (see Brannon, 16 NY3d at 599). Furthermore, [the officer’s] testimony on cross-examination demonstrated that he only assumed the clip indicated the possession of a gravity knife, and that he disregarded the many innocuous items that the clip could have contained. Consequently, he merely surmised that defendant was in possession of a gravity knife, which was insufficient to establish reasonable suspicion (see People v. Vargas, 89 AD3d 582 [2011]). Additionally, [the officer] was unable to demonstrate, based on his experience and training, his reason to believe that, based on the object observed, defendant was in possession of a gravity knife (see Brannon, 16 NY3d at 599). [The officer] did not even detail how many of his 130 arrests had involved gravity knives (compare Fernandez, 16 NY3d at 601). Therefore, since it cannot be said, as a matter of law, that [the officer] had reasonable suspicion that defendant possessed a gravity knife, his retrieval of the gravity knife from defendant’s pocket was improper.

While this blog entry contained a significant amount of “cut and paste,” the words used by and explaination from the appeals court are critical in one’s undestranding and application of the law. Simply, while the clip on the pocket may give rise to a lawful arrest and search, the analysis is a case by case one. What other indicia of not only knife possession was apparent, but what other traits were observed by the officer to indicate the knife was a gravity knife? Could the officer rely on his training or experience? Again, Cruz is a critical case that may be a valued or central piece to a well grounded and strong defense to a New York knife possession charge pursuant to New York Penal Law 265.01.

To educate and prepare yourself for a New York Desk Appearance Ticket, an arrest for gravity knife possession (or any weapon) pursuant to PL 265.01, review the highlighted links found throughout this entry or go directly to the websites and content linked below.

A New York criminal defense firm founded by two former Manhattan prosecutors, the New York criminal lawyers at Saland Law PC represent clients in New York weapon possession arrests, investigations and trials throughout New York City and the surrounding counties.

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